Residence Orders

NB On 22 April 2014, The Children and Families Act 2014 replaced the previous contact and residence orders with a single child arrangement orders which can set out arrangements for where, when and with whom a child will live.

If you are divorcing your spouse and are making arrangements for any children you have under the age of 18, the court handling your divorce will always look at the arrangements you are proposing for the children – and whether they are suitable. These days, the courts start with a commonsense view – the “no order principle” i.e. the courts won’t make an order unless there is a need to. Therefore, provided you and your ex spouse can agree on what happens to children, then the court, almost certainly, will not need to be involved.

However, if the two of you aren’t able to agree arrangements as to where your children should live and when, and if, they should see the non-resident parent, the court has the power to make certain orders – including the residence order. Essentially, residence orders determine where a child will live. It used to be known as custody.

Joint shared residence orders

Joint shared residence orders are quite common; these allow the child to live with more than one person, which can be a useful arrangement when their parents are separated and living at different addresses. Alternatively, a residence order can be made in favour of a single person depending on the particular circumstances in your case.

Automatic parental responsibility

If you have a residence order for a child, it automatically also gives you parental responsibility for that child. If a person fails to comply with a residence order made by the court then that order can be enforced.

When does a residence order end?

The court can also choose to end a residence order in certain situations, such as by making a care order in the interests of the child. The residence order normally ends when the child is 16.

Making a Residence Order – what the court considers

Above all else, when considering whether a residence order should be made, court will always put child is first – in the words of the children act. “The child’s interests are paramount “. There are certain particular issues that the court will look at when considering making a receive residence order, including:

• The wishes and feelings of the child

• The child’s physical, emotional and educational needs

• The likely effect on the child of a change in their circumstances.

• The child’s age, sex and background.

• Any harm which the child has suffered or is at risk of suffering.

• How capable are the parents and any other relevant person of providing support and care for the child

• The family home, as it is often considered preferable for children to remain living there if possible.

• The suitability of the proposed living accommodation for the children

If possible, it is best if parents can agree between themselves who the children will be living with, as well as coming up with arrangements for school holidays, paying for their care and so on.

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